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The STEM OPT Extension Lawsuit and Its Impact on Employers and Employees

What is this STEM OPT Extension lawsuit about?

The Washington Alliance of Technology Workers (WashTech) filed a lawsuit against the Department of Homeland Security (DHS) challenging DHS’ authority to establish any post-completion OPT (including STEM extensions). On August 12, 2015, the District Court found that while DHS does have the authority to establish such a program, their failure to provide notice and invite public comment when it published the 2008 STEM OPT extension rule was a procedural deficiency that could merit rescission of the rule. The Court gave DHS through February 12, 2016, to reissue the rule and correct this deficiency. On October 19, 2015, the DHS issued a new proposed STEM OPT rule to cure the procedural defects of the 2008 rule.

After DHS received over 50,000 comments on the new proposed rule, DHS requested an extension until May 10, 2016, to meet the District Court’s requirements, which the Court has granted.

DHS has also requested that even if the Court rules against the STEM OPT extension program, it allow F-1 students who have been granted a STEM OPT extension to continue working through the validity period of their existing STEM OPT EAD.

How will this impact students in F-1 status currently working on OPT or STEM OPT EADs?

Things to keep in mind for employers and employees:

If you qualify for a STEM OPT extension, you should continue to work with your Designated School Official (DSO) and apply for a STEM extension in a timely manner (at least 120 days prior to the expiration of your STEM OPT EAD).

For now, the current rule continues in effect until the effective date of any new regulation eventually published by DHS. If the Court rescinds the STEM OPT program prior to or on May 10, 2016, students currently working pursuant to a STEM OPT EAD must immediately stop working on this date.

F-1 students working pursuant to a regular non-STEM OPT EAD are not currently impacted by this pending Court decision. They may continue to work on their OPT EAD regardless of the Court’s decision in this case through the validity period of their EAD (and potentially longer if an H-1B cap case is filed and selected in the lottery and they are eligible to work in the U.S. pursuant to the “cap gap”).

Even if the Court rescinds the STEM OPT program on May 10, 2016, if an employer has filed an H-1B cap-subject petition on behalf of any employees currently working on a STEM OPT EAD, those employees will be able to remain in the U.S. in F-1 status (but not work in the U.S.), until it is confirmed that an H-1B petition filed on their behalf is selected in this year’s lottery. If the case is selected in the H-1B lottery, the employee can remain in the U.S. and begin working on October 1, 2016, if the petition is approved before October 1, 2016. If their H-1B cap petition is not selected in the lottery, the employee may not remain in the U.S., and the 60-day departure preparation period, commonly known as the “grace period,” begins immediately.

We recommend that employees in F-1 status working pursuant to a STEM OPT EAD avoid any international travel during this time period.

This message has been released by the Immigration Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.